UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

JAMES R. DAWSON, JR.,

 Petitioner - Appellant,

v.

COLORADO,

 Respondent - Appellee.

No. 15-1287 

(D. Colorado)

(D.C. No. 1:15-CV-01512-LTB)

ORDER DENYING CERTIFICATE OF APPEALABILITY 

Before HARTZ, BRISCOE, and MORITZ, Circuit Judges. 

 

James R. Dawson Jr., a Colorado state prisoner proceeding pro se, applied for 

relief under 28 U.S.C. § 2241 in the United States District Court for the District of 

Colorado. The district court dismissed his application and denied a certificate of 

appealability (COA). He now seeks a COA under 28 U.S.C. § 2253(c)(1)(A). See 

Montez v. McKinna, 208 F.3d 862, 868–69 (10th Cir. 2000) (state prisoner must obtain a 

COA to appeal denial of habeas application under 28 U.S.C. § 2241). We deny a COA 

and dismiss the appeal. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
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In 1992 Mr. Dawson was convicted of second-degree murder, attempted seconddegree murder, and heat-of-passion assault in Colorado state court. At a pretrial hearing 

the court had ordered that blood and urine samples be obtained from him to test for drugs 

and alcohol in support of potential defenses, but that evidence was lost or destroyed by 

law enforcement before it could be used at trial. 

After the conviction Colorado enacted a statute providing that “[a] court granting a 

motion for hearing pursuant to [Colo. Rev. Stat. § 18-1-412, which sets forth the 

procedure for a prisoner to apply for DNA testing,] shall order the appropriate law 

enforcement agency to preserve existing biological evidence for DNA testing.” Colo. 

Rev. Stat. § 18-1-414(2)(a) (2003) (amended 2008). The statute further requires the court 

to “set a hearing to determine whether a remedy is warranted” if “a law enforcement 

agency, through negligence, destroys, loses, or otherwise disposes of biological evidence 

that is the subject of an order pursuant to this subsection (2) before the evidence may be 

tested.” Id. § 18-1-414(2)(b). 

Mr. Dawson filed a motion under § 18-1-414(2)(b) in Colorado state court, 

seeking a hearing to determine whether he was entitled to a remedy for the loss or 

destruction of the blood and urine samples. The trial court denied the motion on the 

ground that the statute applied only to evidence ordered preserved for DNA testing. The 

Colorado Court of Appeals affirmed and the Colorado Supreme Court denied his petition 

for a writ of certiorari. Mr. Dawson then filed state postconviction petitions for relief, 

arguing that the court’s failure to grant him a hearing under § 18-1-414(2)(b) violated due 
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process, equal protection, the federal Ex Post Facto Clause, and Colorado law. The 

Colorado courts denied his petitions. 

Mr. Dawson then filed his application under 28 U.S.C. § 2241. It alleged that the 

denial of his motion for a hearing under Colo. Rev. Stat. § 18-1-414 violated the Equal 

Protection, Due Process, and Ex Post Facto Clauses. 

To obtain a COA a petitioner must make a “substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner “can make such a showing by 

demonstrating that the issues he seeks to raise on appeal are deserving of further 

proceedings, subject to a different resolution on appeal, or reasonably debatable among 

jurists of reason.” Montez, 208 F.3d at 869. Review under § 2241 is available only if an 

individual is “in custody in violation of the Constitution or laws or treaties of the United 

States.” 28 U.S.C. § 2241(c)(3). 

Mr. Dawson has failed to state a claim cognizable in a § 2241 action. He is 

challenging only the constitutionality of a state postconviction procedure, not the 

constitutionality of his conviction. Under our precedents such a challenge is not proper 

in habeas proceedings. See Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010) (“the 

district court did not err in dismissing claims that related only alleged errors in the postconviction proceedings”); Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998). No 

reasonable jurist could debate whether Mr. Dawson’s § 2241 application ought to have 

been granted. 
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We DENY Mr. Dawson’s request for a COA and DISMISS his appeal. We 

GRANT his motion to proceed in forma pauperis. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge